Frederick William Maitland, Downing Professor of the Laws of England: A Biographical SketchFisher, H. A. L. (Herbert Albert Laurens)
History
Frederick William Maitland, Downing Professor of the Laws of England: A Biographical Sketch
Fisher, H. A. L. (Herbert Albert Laurens)
Maitland, Frederic William, 1850-1906
One of the principal subjects which engaged Maitland's mind during
these years was the history of the Corporation. Problems connected with
the growth and definition of the Corporate idea had furnished the theme
of the Ford Lectures and a course upon the Corporation in English law
was delivered in Cambridge in the Autumn Term of 1899. It was a subject
from which Maitland derived deep and peculiar delight. It brought into
play the full range of his faculties, for it was at once metaphysical,
legal and historical. It was associated with the enquiries which he had
already been making into municipal origins, and into the law of the
medieval Church, while, at the same time, it was connected with some
living and familiar developments of modern law, with those corporate
groups which, during the later half of the nineteenth century "had
been multiplying all the world over at a rate far outstripping the
increase of natural persons." Trades unions and joint-stock companies,
chartered boroughs and medieval universities, village communities and
townships, merchant guilds and crafts, every form of association known
to medieval or modern life came within his view, as illustrating the
way in which Englishmen attempted "to distinguish and reconcile the
manyness of the members and the oneness of the body." An enquiry
of this kind was something entirely new in England. Here lawyers
had accepted from the Canonists the view that the Corporation was a
fiction of the law created by the authoritative act of the State. A
mindless thing, "incapable of knowing, intending, willing, acting,
distinct from the living corporators who are called its members,"
the Corporation is and must be the creature of the State. "Into its
nostrils the State must breathe the breath of fictitious life, for
otherwise it would be no animated body but individualistic dust."
_Solus princeps fingit quod in rei veritate non est._ Such a theory
was, as Maitland pointed out, likely to play into the hands of the
paternal despot. The Corporation so conceived--and this is how not only
Savigny but Blackstone also conceived it--was no subject for liberties
and franchises and rights of self-government. It was but "a wheel in
the State machinery." And yet in England, where the Concession theory
of the Corporation was received without challenge, there had certainly
not been less of autonomy and free grouping in guilds and fellowships
than elsewhere. The secret of this apparent contradiction, between a
theory which made corporateness the creature of a sovereign authority
and a practice which enabled permanent groups to be freely formed
without such authority, was to be found in a legal conception peculiar
to England, the conception of the Trust. "Behind the screen of trustees
and concealed from the direct scrutiny of legal theories, all manner of
groups can flourish: Lincoln's Inn, or Lloyds, or the Stock Exchange,
or the Jockey Club, a whole presbyterian system or even the Church of
Public-domain text, read in full here on John Shaqi.
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